Shareefa Begum vs State Of Jammu & Kashmir & Ors

Harvinder Kaur Oberoi, Member J

The applicant was engaged as a daily wager on 2.2.1994. She completed seven years of continuous service as a daily wager in 2001 and in view of the mandate of SRO 64 of 1994, the applicant was entitled to be regularized as such from the year 2001. But till date her case for regularization is pending before the respondents. The case of the applicant along with other similarly situated persons was referred to the Conservator of Forests vide communication dated 12.6.2019 for ensuring the payment of wages. The applicant figures at Sl. No. 70, her date of engagement is shown as 2.2.1994 and her status is shown as daily wager and her wages to the tune of Rs.46,800/- is shown pending to be disbursed from November 2018 to May 2019. The applicant continued to approach the respondents seeking her regularization. It is submitted that in terms of Rule 4 of SRO 64 of 1994 since the applicant is a permanent resident of State of Jammu and Kashmir, she was within the maximum age limit on the date of her engagement and she possesses the requisite qualification of Class IV post, she is entitled to be regularized. Hence the present application.

The applicant has prayed for the following reliefs :

i) WRIT OF MANDMUS commanding the respondents to regularize the services of the petitioner retrospectively from February, 2001 in terms of SRO 64 of 1994 read with judgment delivered by the Division Bench of this Hon’ble Court in case titled, ‘State of J&K & Ors. –vs- Mushtaq Ahmad Sohail & Ors.’ reported 2013 (1) SriLJ 73.

ii) WRIT OF MANDAMUS commanding the respondents to release all the benefits in favour of the petitioner which will accrue to her after regularization of her services retrospectively from February, 2001.

iii) WRIT OF MANDAMUS commanding the respondents to regularize the petitioner against Class IV post in terms of SRO 64 of 1994.

iv) WRIT OF MANDAMUS commanding the respondents to release the unpaid wages of the petitioner forthwith.

v) Any other order, writ or direction may also be issue in favour of the petitioner and against the respondents which this Hon’ble Court deems fit and necessary in the facts and circumstances of the case.

The respondents have filed their counter stating that as per school leaving certificate produced by the applicant, she is Class IX pass and has been engaged as Daily Wager on 2.2.1994. It is submitted that the case of the applicant has been recommended among other Daily rated works to the higher authorities for accord of consideration to the regularization of her service in terms of SRO 64 of 1994 from time to time and finally the same was placed before the Empowered Committee (Finance Department). As per minutes of 13th meeting of Empowered Committee held on 4.4.2018, it has been observed that the applicant is ineligible for regularization under SRO 64 of 1994 being initially engaged after ban was imposed vide Govt. order dated 31.1.1994. Hence as per observations made by the Empowered Committee, the respondents are unable to process and submit the case of the applicant for regularization of her daily wage service against Class IV post. It is also submitted that as per available records, the applicant stands paid up to the month of February, 2019 as per the rates notified by the Govt. and the rest will be paid to her after allocation of funds by the Government under wages outsourcing Head. The respondents have therefore prayed for dismissal of the present application being devoid of any merit.

Heard learned counsels for both sides and perused the materials available on record.

Sr. Counsel appearing for the applicant argued that the case of the applicant for regularization is being denied only on the premise that she was engaged as daily wager after the imposition of ban vide Govt. order dated 31.1.1994. He submits that this contention of the respondents has been negated by the Hon’ble High Court of Jammu and Kashmir at Srinagar in its judgement and order dated 20.12.2012, titled as St of J & K & Ors Vs Mushtaq Ahmed Sohail & Ors. He relies upon para 14 which reads as under:-

“14 What would emerge from above is that daily rated workers/work charged employees who were appointed after imposition of ban and continued beyond ban period were given benefit of notification dated 6th November 2001, which in-effect, would mean that the daily rated workers/work charged employees engaged even after 01.04.1994 till 6th November 2001, were also entitled to be regularized in terms of the Jammu and Kashmir Daily Rated Workers/Work-Charged Employees (Regularization) Rules, 1994.”

Per Contra counsel for the respondents submits that as the applicant was engaged after imposition of ban she does not meet the criteria of the SRO 64 of 1994 and therefore her services cannot be regularized as her appointment itself is illegal.

At this juncture it would be prudent to examine the Supreme Court judgments on the subject mainly the Constitutional Bench judgment in Secretary, State of Karnataka and others vs. Umadevi and others has categorically deprecated the practice of regularizing temporary workers and has also held that if an appointment was illegal, there is no scope for regularization. The relevant portion of the judgment is delineated below:

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."

In the instant case It is not in dispute that applicant was appointed on 02.02.1994, as per certificate issued by the Divisional Forest Officer, though the appointment letter has not been annexed with the petition. It is also admitted that her case for regularization was considered but the committee did not find favour as she had been appointed after the cut off date. On perusal of the judgment of the Division Bench of the High Court referred to by the applicant it appears the cut off date originally fixed for the benefit of SRO 64 of 1994 was extended from 1.4.1994 to 6.11.2001 in terms of Govt. Order No. 1285 dated 6.11.2001. Even otherwise the applicant was appointed on 02.02.1994 which is within the original cut-off date therefore it cannot be said that there is an illegality in her appointment. Therefore, the right to be regularized in accordance with the scheme (SRO 64 of 1994) continues till all the eligible daily-wagers are absorbed.

We are not impressed with the submissions made on behalf of the Respondents that her appointment was beyond the cut off. Viewed thus the petition is allowed. Respondents to accord consideration to the applicant's regularization from the date she has completed the required length of service in terms of SRO 64 of 1994, read with relevant rules occupying the field and release all the benefits due to her upon regularization of her services with effect from the date of regularization. Exercise to be completed within a period of three months from the date of receipt of copy of order by respondents.

Disposed of accordingly.